Legal considerations in assisted reproduction

by | May 13, 2024 | Blog, Fertility Law

The emotional highs and lows inherent in the complex world of assisted reproduction can cause confusion among intended parents. Challenges can and will arise, especially because of Florida’s specific laws on the subject of fertility.

Florida Fertility Legal Services promises to serve as your Florida fertility law resource, empowering families with the knowledge needed to navigate their journeys.

“I understand all too well the complex emotions you are probably experiencing in trying to start your family,” Florida Fertility Legal Services’ Gerardo Rodriguez-Albizu says. “I can relate to your feelings, not because I have represented hundreds of intended parents who have similar needs, but because my wife and I suffered through infertility over an agonizing four years. It seemed that we were in a labyrinth, until we were finally blessed with a pregnancy that took, gestation to term (well, almost), and we were able to hold the ultimate gift any of us could receive in this life – holding your newly born child in your arms for the very first time.”

A look at the landscape

As intended parents, do you know what the terms ART, gamete donation, parentage establishment and surrogacy mean? Here are the definitions / explanations of each.

  • ART stands for assisted reproductive technology. By definition, it includes the types of fertility treatments that involve the handling of eggs and / or embryos. “In general, ART procedures involve surgically removing eggs from a woman’s ovaries, combining them with sperm in the laboratory, and returning them to the woman’s body or donating them to another woman,” according to the Centers for Disease Control and Prevention. “They do NOT include treatments in which only sperm are handled (i.e., intrauterine – or artificial – insemination) or procedures in which a woman takes medicine only to stimulate egg production without the intention of having eggs retrieved.”
  • Gamete donation. Gamete donation helps lead parents who are unable to provide eggs, embryos or sperm down the path of conception. “Egg or sperm donation allows one of the intended parents to keep the genetic link to the child,” according to ReproductiveFacts.org. “With egg donation, the intended parent is able to experience a biological connection to the child through the pregnancy. With embryo donation, there is no genetic link. However, the intended parents are able to experience pregnancy and birth.”
  • Parentage establishment. In short, parentage establishment is the determination of a lawful relationship between a father / mother and a child for the purposes of economic ties. “It further conveys certain legal rights and privileges to the children,” according to the Children’s Rights Council, referring to inheritance and other benefits such as life insurance.
  • Surrogacy: In Florida, gestational surrogacy is permitted through two statutes: 742.15 FL Stat. for married couples Ch.63.213 FL Stat., for single intended parents or couples who are not legally married to each other.

A mixture of alphabet agencies regulates ART, including the CDC, the U.S. Food and Drug Administration and the U.S. Department of Health and Human Services in addition to state statutes.

“Additionally, the medical profession exercises significant self-regulation to assure the continuing competence of practicing physicians,” the American Society for Reproductive Medicine states. “Specialists in reproductive medicine are certified by the American Board of Obstetrics and Gynecology or the American Board of Urology after completing residency training and passing examinations. They may achieve subspecialty certification with additional training in infertility and endocrinology. Continuing medical education and periodic re-examination are required to maintain certification. ASRM and the College of American Pathologists administer a reproductive laboratory accreditation program for embryology labs to assure that they conform to high national standards of quality. ASRM also produces ethics and practice guidelines. Its affiliate, the Society for Assisted Reproductive Technology (SART), strictly monitors member clinics for adherence to ASRM guidelines, accreditation of their embryology labs, qualification of their staff, and submission of data to the CDC.”

Core issues

It is important to understand the core issues surrounding gestational and traditional surrogacy. Gestational surrogacy involves a carrier, or surrogate, of the pregnancy who is not genetically related to the fetus. In such cases, the egg comes from the parent-to-be or from another donor. Traditional surrogacy occurs when the carrier of the pregnancy is genetically related to the fetus. In such cases, the egg is the carrier’s. In both scenarios, the carrier agrees to surrender parental rights to the intended parents.

It also is important to understand there are pros and cons to each type of surrogacy so it follows that the intended parents should formulate a strong pre-planned agreement, starting with the selection of a professional agency that specializes in the process. But the first step is deciding whether surrogacy is the right fit for you.

Before you invest significant time and energy in the surrogacy process in Florida, it’s important to fully understand the process to be sure surrogacy is right for you. Intended parents, typically will benefit from surrogacy if:

  • They are struggling with infertility
  • They are an LGBTQ+ couple
  • They want to have a child but don’t want to wait for a partner

The best way to learn more about the surrogacy process is by contacting a surrogacy professional. A competent, surrogacy professional can answer questions you have, help you better understand the surrogacy process, and conduct initial screening to ensure surrogacy is right for you.

Regarding parental rights and potential challenges to those rights, consult with your legal team.

For example, in Florida a post-birth parentage process is required to establish the intended parents as the “legal” parents of their child born through surrogacy.  In contrast, gamete donation standing alone does not require a post-birth parentage process because, as a matter of Florida law, the birth mother is presumed to be the legal parent of the child.

A few other pieces of fertility information that are good to know include the following:

  • Florida law requires donors of sperm, eggs or embryos to relinquish all maternal or paternal rights and obligations once the donations is completed.
  • Only reasonable compensation directly related to the donation of eggs, sperm, and embryos is permitted by Florida law.

Planning and protection

What is the situation with insurance coverage for fertility treatments in Florida? Is it covered?

Currently, Florida does not have a law which mandates coverage for fertility treatments.  Some health insurance plans, however, do provide coverage for certain limited treatments.  And a growing number of employers are adding fertility treatment as part of their employee benefits program.  For this reason, it’s critically important that you contact your health insurance provide and check your employee benefits program to see if any portion of the surrogacy process may be covered, or whether you will have to bear the cost solely on your own.

Resources and support

Below is a list of relevant Florida-based support groups and organizations offering emotional and practical guidance for those exploring ART.

In conclusion

The key to success in your ART undertaking is preparation. Intended parents are encouraged to seek personalized advice for their individual circumstances.

“I can provide you with a litany of all my achievements representing clients, try to dazzle you with my qualifications and prior training (where I studied, the honors I graduated with, the internships I did while in law school, the firms I worked at previously),” Rodriguez-Albizu says. “But in reality, what does any of that mean to you? In the end, I confess it probably means little to you. Fertility law is unique, unlike any other area of law I have studied or practiced. Yes, you want an attorney that has the “right” credentials. But in the end, you want someone who understands you – what you’re going through and the journey you’ve embarked on. I had the big firm job. I represented Fortune 500 companies, banks, real estate developers, businesses of all shapes and sizes. But I left my big firm job in large part because I could not do what my heart truly desired to do with my skills and training – help others who like myself wanted to start their families but could not do so “traditionally.”

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